Legal right and validity of the rule : Two mutually exclusive functions?

Abstract

The text outlines the evolution of the concept of legal interest as the basis for legitimizing criminal law, reviewing its apparent tension with Günther Jakobs' functionalist thesis on the validity of the norm. It also presents the historical development of legal interests since Birnbaum and von Liszt, highlighting their normative nature and their function of limiting the legislator, and later synthesizes the functionalist critique, according to which criminal law does not protect interests but rather the communicative stability of the system by reaffirming the violated norm. In this way, these objections are analyzed, recognizing their merits but emphasizing their limitations: the legal interest is not exhausted in naturalistic categories, it fulfills a preventive and guaranteeing function, and it cannot be replaced by a self-referential conception of the norm; thus, the protection of legal interests and normative validity are not mutually exclusive functions, but complementary dimensions of the criminal justice system. Finally, it is concluded that the legal right remains an essential concept for defining injustice and justifying criminal intervention in a democratic state.